MOLINA v. CHAVEZ
OPINION. Signed by Judge Jose L. Linares on 2/16/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IN RE APPLICATION OF
Civil Action No.: 16-0062 (JLL)
LINARES, District Judge.
This matter comes before the Court by way of a an application for an Order to Show
Cause as to why this Court’s January 22, 2016 Order should not be vacated, filed by Respondent
Endy Chavez. (ECF No. 9). Specifically, Mr. Chavez is seeking an order that vacates this
Court’s January 22, 2016 Order that granted Petitioner relief under the Hague Convention on the
Civil Aspects of International Child Abduction (see ECF No. 7, “Jan. 22, 2016 Order”) and is
also seeking related preliminary relief. Petitioner Joelis Molina has opposed this application.
(ECF No. 11). For the reasons stated herein, this Court denies Respondent’s motion to vacate
the January 22, 2016 Order.
On January 6, 2016, Petitioner filed a Verified Complaint and Order to Show Cause
under the Hague Convention, pursuant to Federal Rule of Civil Procedure 65. (ECF No. 1).
Petitioner, the mother of a minor child, J.M., sought an order from this Court permitting her to
take her child from the United States back to Venezuela. (Id.). After reviewing Petitioner’s
moving papers, on January 6, 2016, this Court ordered that Respondent Endy Chavez, who is the
father of the minor child, appear before this Court on January 21, 2016 to show cause as to why
the child should not be returned to Venezuela. (ECF No. 3, “January 6, 2016 Order” or “Order
to Show Cause”). The Court further ordered Respondent to submit any opposition papers by
January 15, 2016. (Id.
Respondent did not file an opposition to Petitioner’s application for relief prior to the
January 21, 2016 hearing. On January 19, 2016, Petitioner filed a Return of Service indicating
that Mr. Chavez was personally served with the “summons, verified complaint, civil cover sheet,
verification, certification, exhibits, order, order to show cause, brief, [and) letter to U.S. District
Court Clerk” on January 7, 2016. (ECF No. 5).
On January 21, 2016, a hearing on Petitioner’s application for relief under the Hague
Convention was held before the undersigned. Respondent did not appear for the hearing, nor did
any attorney appear on his behalf.
During the course of the hearing, several exhibits were
admitted into evidence which support the Petitioner’s allegations that Respondent unlawfully
removed the child from her habitual residence of Venezuela without Petitioner’s permission or
consent. Namely, Petitioner submitted a custody agreement (Exhibit P2) entered into by the
parties on April 29, 2013 and executed by a judicial officer of Venezuela, which indicated the
parties’ intent that the child shall reside with her mother in Venezuela. Petitioner also submitted
records of the child’s attendance at a school in Venezuela in or around January 2015, further
demonstrating Venezuela to be the child’s habitual residence.
(Exhibit P4). A copy of the
child’s passport shows that the child was removed from Venezuela on February 6, 2015 (Exhibit
P6), and a text message from Respondent dated February 9, 2015 includes an admission that
took the child to the United States (Exhibit P7).
In addition to this evidence, the Court heard testimony from Ms. Molina, which
testimony the Court deemed credible and substantiated by the evidence. Ms. Molina testifie
that the child was lawfully residing with her in Venezuela at the time that Respondent took
child to the United States, and that the child was engaged in her community in Venezuela. Ms.
Molina further testified that she never gave Respondent permission to remove the child from
After reviewing the documents entered into evidence during the hearing and listening to
Petitioner’s testimony, the Court found that “Respondent unlawfully removed the minor child,
J.M., from her habitual residence in Venezuela, in breach of Ms. Molina’s custody rights during
a time when Ms. Molina was exercising those rights.” (Jan. 22, 2016 Order at 2). Accordingly,
the Court found that Petitioner made a prima facia case for relief under the Hague Conve
and that Mr. Chavez failed to assert any opposition or defenses thereto.
In light of these findings, the Court entered an Order, that, among other things, granted
Petitioner’s request for relief under the Hague Convention, permitted the Petitioner to return
to Venezuela, and granted Petitioner “immediate temporary physical custody of the minor
in the United States until the travel arrangements are made to fly from the United States
Venezuela.” (Id. at 3).
On January 26, 2016, Mr. Douglas Kinz, counsel for Respondent, filed a letter on the
docket, addressed to Petitioner’s counsel, Ms. Kathleen Garvey. (ECF No. 8). In said letter,
Kinz informed Ms. Garvey that neither he nor his client were ever served with signed
the January 6, 2016 Order requiring Respondent’s presence at the January 21,
(Id.). Aside from filing this attorney correspondence on January 26, 2016, Respon
dent did not
file any request for relief from this Court’s January 22, 2016 Order until February 1, 2016. (ECF
In his February 1, 2016 application, Respondent requests that the Court’s January 22,
2016 Order be vacated under Federal Rule of Civil Procedure 60(b). (ECF No. 9-2, “Resp.’s
Mov, Br. at 8-13). Petitioner filed opposition papers on February 8, 2016 (ECF No. 11). On or
about February 9, 2016, this Court received, via regular mail, two reports that were filed in the
custody action filed by Mr. Chavez in New Jersey Superior Court.’ Having been fully briefed,
this matter is now ripe for the Court’s adjudication.
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances, including fraud, mistake, and newly discovered
evidence,” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Specifically, the Rule provides:
On motion and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
In his cover letter to the Court attaching these reports, Respondent’s attorney explained
that he has not
electronically filed these documents as “they were prepared under State Court protective order,
and should not be
viewed by the public.” The Court notes that per the State Court’s Order attached to the reports,
these reports “may
not be used in any other matter without the express written permission of the Court.”
As Respondent has not
submitted any proof that the State Court sanctioned his use of these reports in this matter,
the Court declines to
discuss the reports herein. However, the Court has reviewed the reports, and fmds that they only
further support Ms.
Molina’s claim for relief under the Hague Convention.
(6) any other reason that justifies relief.
Fed. R. Civ. p. 60(b).
Respondent here seeks relief under Rule 60(b)(4), (b)(6) and (b)(1). (Resp.’s Mov. Br. at 9-14).
A. Respondent’s Request to Vacate the Court’s January 22, 2016 Order under Rule
60(b)(4) is Denied
Mr. Chavez contends that relief from the January 22, 2016 Order is appropriate under Rule
60(b)(4) because the judgment was “void” as a violation of due process. (Resp.’s Mov. Br. at 910). Specifically, Respondent argues that he was never served with a signed copy of this Court’s
January 6, 2016 Order notifiing him of the January 21, 2016 hearing date and that he therefore
did not have the opportunity to present for the hearing. (Id.).
In support of Mr. Chavez’s argument that he was never served with a signed Order, he directs
the court to a number of factors that he believes undermine the position of Petitioner’s attorney
that Mr. Chavez was in fact served with a signed order to show cause. (Id.). These factors are:
(1) the fact that “[t]he Verified Complaint and accompanying documents that were sent by e-mail
on January 6, 2016 to [Respondent’s] counsel and the child’s guardian ad litem did
signed Order to Show Cause” and that Ms. Molina “acknowledges that the signed Order to Show
Cause was never served on either the [Respondent’s] attorney or the guardian ad litem”; (2) the
Return of Service prepared by Petitioner’s process server, Guaranteed Subpoena Service, does
not indicate that the Order to Show Cause that was served was signed; (3) the papers served on
defendant were the same as those served the day prior on his attorney; (4) Petitioner’s failure to
serve the guardian ad litem appointed by the State Court in the custody proceeding in accordance
with the State Judge’s order that all documents filed in the Hague Convention matter shall be
filed upon all counsel; and lastly, (5) that Respondent’s failure to appear was inconsistent with
his having vigorously litigated the custody matter. (Id.) (emphasis in original).
Further, Mr. Kinz has submitted a certification stating that he was never served with a signed
Order to Show Cause. (ECF No. 9-3, “Kinz Cert.”
According to Mr. Kinz, when Mr.
Chavez contacted Mr. Kinz after being served with Petitioner’s papers on January 7, 2016, Mr.
Kinz “specifically asked [Respondent] whether he was served with actual [sic] signed Order to
Show Cause, or a proposed Order to Show Cause in blank,” to which Respondent stated that he
was served with a blank Order. (Id.
(emphasis in original). Mr. Chavez also certified that
he was served with a blank order to show cause and confirmed Mr. Kinz’s recitation of their
January 7, 2016 conversation. (ECF No. 9-4, “Chavez Cert.” at 1, 16 37).
Petitioner’s counsel maintains that Respondent was served with a signed Order to Show
Cause, (ECF No. 11-5, “Petr.’s Opp. Br. at 7). In support of this argument, Petitioner has filed a
certification of Ms. Garvey’s legal assistant, Giselle Villalta. (ECF No. 11-4, “Villalta Cert.”).
Ms. Villalta certified that on January 7, 2016, after arranging for service of process with
Guaranteed Subpoena Services, Inc., she downloaded a pdf of the signed Order to Show Cause
and e-mailed to Guaranteed Subpoena the signed Order, along with other papers to be personally
Ms. Villalta further certified that after receiving Mr. Kinz’s
letter indicating that his client received a blank Order to Show Cause, Ms. Villalta “reviewed
each and every document attached to the January 7, 2016 e-mails to Guaranteed Subpoena.” (Id.
7). A review of these e-mails showed that a signed Order to Show Cause was attached to the
third e-mail sent to Guaranteed Subpoena, and further, that a blank Order to Show Cause was
never sent to Guaranteed Subpoena. (Id.). On February 2, 2016, Ms. Villalta spoke with Ms.
Donna Ciullo, the Supervisor with Guaranteed Subpoena. (Id.
8). Ms. Villalta certified that
J is undisputed that on January 6, 2016, Ms. Garvey served Mr. Kinz with Petitioner’s moving
papers and that,
upon receipt of same, Mr. Kinz’s office notified Ms. Garvey that Respondent should be personally
served as Mr.
Kinz had not yet been retained in the Federal action. (Kinz Cert. 3; Petr. ‘s Opp. Br. at 2).
“Ms. Ciullo confirmed receipt of the email with the signed Order to Show Cause in their system,
which was given to the process server and served on Mr. Endy Chavez.” (Id.).
Ms. Villalta’s certification is substantiated by certifications of Ms. Ciullo herself as well as
John Obie, the process server. (See ECF No. 11-2, “CiuUo Cert.”; ECF No. 1 1-3, “Obie Cert.”).
Ms. Ciullo “personally reviewed the documents on [Guaranteed Subpoena’sj server and
confirmed that one of the documents to be served was an Order to Show Cause signed by Judge
Linares,” (Ciullo Cert.
¶ 6). Ms. Ciullo also confirmed that a blank Order to Show Cause was
never sent to Guaranteed Subpoena. (Id.). Moreover, Mr. Obie certified that he personally
served the signed Order to Show Cause upon Respondent and executed a Return of Servic
attesting to same. (Obie Cert.
¶ 4, 6).
Having reviewed the certifications submitted and arguments offered by both parties, the
Court is satisfied that Respondent was served with a signed copy of the Order to Show Cause.
Petitioner has successfully established, through the certifications of three individuals who
directly handled the signed Order to Show Cause, that Respondent was served with a signed
Order. Accordingly, the Court declines to credit Respondent’s statements that he was never
served with a signed copy of this Court’s Order to Show Cause and will therefore deny
Respondent’s motion to vacate this Court’s January 22, 2016 Order under Rule 60(b)(4
B. Respondent’s Request to Vacate the January 22, 2016 Order under Rule 60(b)(1
Respondent argues that in the event the Court finds that he was properly served with a signed
Order to Show Cause, the Court should nonetheless vacate its January 22, 2016 Order
Rule 60(b)(1) on the grounds of “excusable neglect.”
(Resp.’s Mov. Br. at 13).
determination of whether vactur based upon “excusable neglect” is proper “is[, at
j bottom[,j an
equitable one, taking account of all relevant circumstances surrounding the party’s omissi
Pioneer mv. Services Co. v. Brunswick Assoc. ‘s Ltd Partnership, 507 U.S. 380, 395
also In re Cendant Corp. PRIDES Litigation, 235 F.3d 176, 181-82 (3d Cir. 2000).
Among any other relevant factors, courts deciding whether negligence was “excus
should consider “the danger of prejudice to [the non-movant], the length of the
delay and its
potential impact on judicial proceedings, the reason for the delay, including whethe
r it was
within the reasonable control of the movant, and whether the movant acted in
Pioneer, 507 U.S. at 395; see also George Harms Const. Co., Inc. v. Chao, 371
F.3d 156, 163-64
(3d Cir, 2004)).
Respondent contends that these factors weigh heavily in his favor. (Resp. ‘s Mov.
Br. at 14).
Specifically, Mr. Chavez argues that Petitioner would not be prejudiced from an order
this Court’s January 22, 2016 Order given the short period of time between the Januar
y 22, 2016
Order and the filing of Respondent’s motion to vacate. (Id.). Respondent further
“the length of delay due to [his] failure to respond to the Order to Show Cause was
has not had a material impact on the judicial proceedings, with the exception of
the hearing that
took place on January 2Ut.’ (Id.). Lastly, Mr. Chavez contends that he acted
in good-faith by
permitting his attorney to file the instant motion immediately after learning
about the Court’s
January 22, 2016 Order. (Id.).
Petitioner, for her part, argues that an order setting aside the January 22, 2016
prejudice Ms. Molina who “has made arrangements to travel with the
[C]hild back to
Venezuela.” (Petr.’s Opp. Br. at 4). Moreover, Petitioner notes that she
has lived in the United
States and away from her home since March 17, 2015, while trying
to resolve this custody
The Court declines to vacate the January 22, 2016 Order on the grounds of “excusable
At the outset, the Court notes that Hague Convention cases are to be resolved
expeditiously in order to “secure the prompt return of children wrongfully removed to or retaine
in any Contracting State.” Hague Convention, Art. 1; see also Baxter v. Baxter, 423 F.3d 363,
367 (3d Cir. 2005).
Consistent with the Hague Convention’s aim, this Court has moved
expeditiously to resolve Petitioner’s application for relief. Indeed, on January 6, 2016, the same
day that Petitioner’s complaint and application for relief was hand-delivered to this Court, the
Court reviewed Petitioner’s moving papers and held a hearing on this matter. (See ECF Nos.
4). After reviewing Petitioner’s papers and hearing from Petitioner’s counsel, the Court entered
an Order to Show Cause that set a hearing date for January 21, 2016. (ECF No. 5). Then, on the
day immediately following the January 21 hearing, this Court, after considering the exhibits and
testimony submitted at the prior day’s hearing, entered the January 22, 2016 Order grantin
Petitioner’s requested relief.
Having already determined that Mr. Chavez was properly served with a signed Order
Show Cause on January 7, 2016, the Court finds that the delay in filing the instant motion
February 1, 2016 is unacceptable and that any further delay would unduly prejudice Petitio
Since the Court’s January 22, 2016 Order, Petitioner, a Venezuelan citizen who entered
United States nearly a year ago in order to secure the return of her Child and defend
suit filed against her, has made arrangements to bring the Child back to Venezuela.
Opp. Br. at 4), Consistent with the goals of the Hague Convention, the Court decline
s to prolong
the period that Petitioner must remain in the United States any longer.
C. Respondent’s Request to Vacate the January 22, 2016 Order under Rule
Finally, Respondent argues that this Court should vacate the January 22, 2016 Order under
Rule 60(b)(6), (Resp.’s Mov. Br. at 11-13). “Rule 60(b)(6) exists so that courts may ‘vacate
judgments whenever such action is appropriate to accomplish justice’
in situations that are
not addressed by the other five clauses of Rule 60(b).” Budge Blinds, Inc. v. White, 536 F.3d
244, 254 (3d Cir. 2008) (quoting Klapprott v. United States, 335 U.S. 601, 614 (1949)). The
Third Circuit has stated that “[r]ule 60(b)(6) is available only in cases evidencing extraordinary
circumstances.” Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975).
Courts considering a Rule 60(b)(6) motion to vacate are guided by several factors, including:
(1) The general desirability that a final judgment should not be lightly disturbed; (2)
the procedure provided by Rule 60(b)(6) is not a substitute for an appeal; (3) the Rule
should be liberally construed for the purpose of doing substantial justice; (4) whether,
although the motion is made within the maximum time, if any, provided by the Rule,
the motion is made within a reasonable time; (5) whether there are any intervening
equities which make it inequitable to grant relief; (6) any other factor that is relevant
to the justice of the [order] under attack.
LasAy v, Continental Products Corp., 804 F.2d 250, 256 (3d Cir. 1986) (internal quotations and
Respondent contends that a review of these factors militate towards vacatur of this
Court’s January 22, 2016 Order. (Resp.’s Mov. Br. at 11-13). Indeed, Respondent argues
“substantial justice” requires that the Order be overturned to give Mr. Chavez the right to have
these custody issues decided on the merits of the case. (Id. at 12). Respondent adds that
this Court to deny his request for vacatur, the Court would be condoning what he believe
s to be
the “gamesmanship, if not outright chicanery” of Petitioner and her attorney in: (1) alleged
failing to serve a signed Order to Show Cause; (2) permitting the hearing to go forward
Respondent; and (3) not complying with the State Court’s directive to serve all papers
matter upon all counsel. (Id.). Further, Respondent contends that “extraordinary circum
exist for vacating this Court’s January 22, 2016 Order where the effect of same would
compel a U.S. citizen who has lived in this country for the better part of nearly two years, and
who by all accounts has thrived in her [New Jersey] home, to return to a country where there is
rampant crime, civil unrest and economic deprivation” and where “the [C]hild [will be] exposed
to substantial danger and privation.” (Resp. ‘s Mov. Br. at 12-13). Respondent contends that this
result would run counter to “the recommendations of the child’s guardian ad litem, the two
experts on Venezuelan affairs who were retained by the guardian ad litem and defendant’s
counsel, and a court-appointed psychologist who conducted a detailed custody evaluation.” (Id.).
At the outset, the Court rejects Respondent’s suggestion that this case was not decided on
merits. This is not a case where the Court entered a default judgment against Respondent for his
failure to respond to Petitioner’s application or for his failure to appear. Rather, prior to issuing
its January 22, 2016 Order, the court carefully reviewed Petitioner’s application and all papers
submitted therewith. The Court also held a hearing during which it required Ms. Molina’s
attorney to put forward a case as to why Petitioner is entitled to relief under the Hague
Convention. After reviewing all of the evidence before it, and finding the testimony of Ms.
Molina credible, the Court found that “Petitioner ha[d] made a prima facia case for relief under
the Hague Convention and no opposition or defenses have been filed or otherwise asserted by
Respondent.” (Jan. 22, 2016 Order at 2).
In any event, Respondent has not directed this Court to any case law suggesting that he
has a defense under the Hague Convention. Rather, elsewhere in his moving brief (see Resp.
Mov. Br. at 15-17) Respondent makes generalized arguments that Venezuela is not a safe place
for the Child and that Ms. Molina had transferred residential custody.
The thrust of
Respondent’s substantive argument appears to be that it is in the best interests of the
remain in New Jersey. (See Resp.’s Mov. Br. at 4-6).
Yet, to the extent that Respondent argues that it is in the best interests of the Child that
the Child remain in New Jersey, his argument misses the mark.
This Court declines the
invitation that Respondent appears to extend to determine which country the Child is
to thrive in. It is not the role of a Federal Court hearing a Hague Convention
case to settle
custody disputes. Baxter, 423 F.3d at 367. Rather, it is the role of a Federal Court
that rights of custody and of access under the law of one Contracting State
respected in the other Contracting States.” Hague Convention, Art. 1. The Court
found, and the parties do not dispute, that the parties entered into a custody agreem
ent in the
Venezuelan Judicial Circuit Court on April 24, 2013, which permitted Ms. Molina
residential custody over the Child. (Jan. 22, 2016 Order at 2; Resp.’s Br. at 2; ECF
“Petr.’s Mov. Br. at 2). Accordingly, the Court finds that this action is more proper
ly before the
Venezuelan courts, and declines to alter its January 22, 2016 Order to that effect.
For the reasons stated herein, the Court denies Respondent’s motion to vacate
Court’s January 22, 2016 Order. An appropriate Order accompanies this Opinio
IT IS SO ORDERED.
The Court is aware of Respondent’s argument that Ms. Molina executed a docum
ent “in order to memorialize the
agreement to transfer custody” to Mr. Chavez. (Resp.’s Mov. Br. at 2-3; ECF
No. 9-5, Exh. B). At the January 21,
2016 hearing, Ms. Molina testified that she signed a certification but that she
was not aware that the certification she
signed stated that she agreed to transfer custody rights to Mr. Chavez. The
Court has found Ms. Molina’s testimony
on this point to be credible.
As the Court denies Respondent’s motion to vacate, the Court also denies Mr.
Chavez’s related request for
preliminary injunctive relief. (See Resp.’s Mov. Br. at 14-16).
IITED STATES DISTRICT JUDGE
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